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11/23/94 SAMUEL THOMAS ADCOCK v. BRAKEGATE

November 23, 1994

SAMUEL THOMAS ADCOCK, EX'R OF THE ESTATE OF HUBERT ADCOCK, JR., DECEASED, APPELLEE,
v.
BRAKEGATE, LTD., ET AL. (OWENS-CORNING FIBERGLAS CORPORATION, APPELLANT).



Bilandic

The opinion of the court was delivered by: Bilandic

CHIEF JUSTICE BILANDIC delivered the opinion of the court:

The plaintiff, Samuel Adcock, as executor of Hubert Adcock, Jr.'s estate, brought an action in the circuit court of McLean County against Owens-Corning Fiberglas Corporation (Owens-Corning) and other manufacturers of asbestos-containing products. The plaintiff's action sought damages allegedly arising from the decedent's exposure to asbestos in his work environment. Counts XXI and XXII of the plaintiff's third-amended complaint, which were the only counts directed against Owens-Corning, sought recovery for civil conspiracy. The trial court denied Owens-Corning's motion to dismiss these counts for failure to state a cause of action.

Pursuant to Supreme Court Rule 237(b) (134 Ill. 2d R. 237(b)), the plaintiff served Owens-Corning with notice to produce several of its employees as witnesses at trial. Owens-Corning refused to produce two of its corporate officers as witnesses, despite a court order that it do so. As a result, the trial court entered a judgment against Owens-Corning on the issue of liability as a sanction. The case proceeded to trial on the issue of damages only. The jury returned a verdict for the plaintiff in the amount of $213,811.79. The trial court entered judgment on the verdict and denied Owens-Corning's motion for post-trial relief. The appellate court affirmed the judgment of the trial court. (247 Ill. App. 3d 824.) We allowed Owens-Corning's petition for leave to appeal (145 Ill. 2d R. 315) and now affirm the appellate court.

BACKGROUND

The decedent, Hubert Adcock, Jr., was employed by Unarco Industries (Unarco) at an asbestos plant located in Bloomington, Illinois. The decedent worked at the plant from 1954 through the end of 1970. In April 1970, Adcock's employer, Unarco, sold the Bloomington plant to Owens-Corning. Following the sale, Owens-Corning manufactured asbestos-containing products at the Bloomington plant. Unarco continued to manufacture stainless steel sinks at the Bloomington plant following Owens-Corning's purchase of that plant. The decedent worked in Unarco's sink division within the Bloomington plant until the end of 1970. While working at the Bloomington plant, the decedent was allegedly exposed to asbestos products. As a result of such exposure, hecontracted pulmonary asbestosis and peritoneal mesothelioma, a cancer caused by exposure to asbestos. The decedent died in July 1987.

In December 1987, the plaintiff filed his initial complaint against Owens-Corning and other defendants not parties to this appeal. Two counts of that complaint were directed at Owens-Corning and sought recovery for civil conspiracy. Owens-Corning moved to strike and dismiss the complaint, stating that civil conspiracy is not an actionable tort in Illinois. The trial court granted the motion, concluding that, although civil conspiracy is a recognized tort in this State, the plaintiff's complaint contained several factual deficiencies.

Subsequently, the plaintiff filed the third-amended complaint. Counts XXI and XXII of the amended complaint, which were directed at Owens-Corning, sought damages under the Wrongful Death Act and the Survival Act. Both counts alleged that the decedent was exposed to asbestos while he worked at the Bloomington plant and, as a result of his exposure, contracted asbestosis and mesothelioma. These counts also asserted that Owens-Corning entered into a conspiracy with other asbestos manufacturers, who are not involved in this appeal. The agreement's alleged purposes were to suppress information about the hazards of asbestos exposure and to assert positively claims that the conspirators knew were false, namely, that it was safe to work with and in close proximity to asbestos. The complaint further alleged that one or more of the conspirators performed tortious acts in furtherance of the conspiracy. For example, the complaint alleged (1) that Unarco employed the decedent without warning him of the risks associated with asbestos exposure; (2) that Johns-Manville sold asbestos to which the decedent was exposed without warning of the dangers; and (3) that Owens-Corning and its co-conspirators fraudulentlymisrepresented that it was safe to work with and in close proximity to asbestos, thereby causing the workers to suffer asbestos-related injuries. Lastly, the complaint alleged that the decedent suffered damages as a proximate result of the conspiracy and acts performed in furtherance thereof, in that he contracted asbestosis and mesothelioma. The amended complaint corrected the factual deficiencies noted by the trial court.

Owens-Corning moved to strike and dismiss the amended complaint for failure to state a cause of action (Ill. Rev. Stat. 1991, ch. 110, par. 2-615). The trial court denied Owens-Corning's motion. Significantly, Owens-Corning elected not to stand on its motion to dismiss. Instead, it filed an answer denying the essential allegations raised in the plaintiff's complaint. The case proceeded.

Prior to trial, the plaintiff served Owens-Corning with notice pursuant to Supreme Court Rule 237(b) (134 Ill. 2d R. 237(b)) to produce several Owens-Corning employees as witnesses at trial. Two of the witnesses named in the Rule 237(b) notice were Dr. Jon Konzen, Owens-Corning's medical director, and W.W. Boeschenstein, former chairman and chief executive officer of Owens-Corning and a current member of its board of directors. Owens-Corning filed a motion to quash plaintiff's Rule 237(b) request insofar as it related to the production of Konzen and Boeschenstein at trial. It argued that the plaintiff could not demonstrate good cause as to why these witnesses were necessary and had not indicated how these witnesses' testimony would evidence a conspiracy. It also argued that the due process rights of the witnesses would be violated if they were compelled to testify because they were residents of Ohio and not subject to personal jurisdiction in Illinois.

At the hearing on Owens-Corning's motion to quash, plaintiff's counsel requested that the witnesses beproduced outside the presence of a jury so that it could demonstrate "good cause" for calling them through question and answer sessions with the witnesses. When Owens-Corning declined to produce the witnesses for this purpose, plaintiff's counsel provided oral argument showing the relationship of Konzen and Boeschenstein to the issues in dispute. Documents introduced in support of this argument tended to show that Konzen's and Boeschenstein's testimonies would demonstrate that Owens-Corning was aware of the risks associated with its asbestos products; that Owens-Corning was concerned about the unfavorable consequences which would follow if these risks became widely known; that Owens-Corning made concerted efforts to prevent such risks from becoming widely known, by declining to give warnings of the hazards associated with asbestos and by deliberately misrepresenting that asbestos posed no hazards to health; that Owens-Corning knew that the amount of airborne asbestos in the Bloomington plant was excessive and posed a serious risk to the health of those working in the plant; and that Owens-Corning knew that those who worked there were not aware of the risks.

The trial court denied Owens-Corning's motion to quash the Rule 237(b) notice and ordered it to produce Konzen and Boeschenstein at trial. Owens-Corning refused to comply with the trial court's order to produce the two witnesses. In response, the plaintiff moved for sanctions. The trial court granted the plaintiff's motion, struck Owens-Corning's answer, and entered a judgment against Owens-Corning as to liability. See also Johnson v. Owens-Corning Fiberglas Corp. (1992), 233 Ill. App. 3d 425, 174 Ill. Dec. 583, 599 N.E.2d 129; Kearney v. Brakegate, Ltd. (1994), 263 Ill. App. 3d 355 (where similar judgments were entered to sanction Owens-Corning's refusal to produce Konzen and Boeschenstein).

The trial proceeded on the issue of damages alone. At the close of the evidence regarding damages, Owens-Corning renewed its earlier motion for judgment on the pleadings and asked the trial court to reconsider its ruling striking its answer. The trial court denied these motions. As stated, the jury returned a verdict in the plaintiff's favor in the amount of $213,811.79. The trial court entered judgment on that verdict.

Owens-Corning appealed, arguing that the trial court erred in denying its motion to dismiss the plaintiff's complaint for failure to state a cause of action. Owens-Corning contended that the plaintiff's complaint was deficient because civil conspiracy is not actionable absent underlying intentional, tortious conduct. Owens-Corning also argued that the trial court abused its discretion ...


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